Berry v. Wasserman

Knowlton, J. The question in this case is what construction shall be put upon the bond declared on. The plaintiff contends that the greater part of the condition, to wit, all after the words “ after the final judgment in said action,” should be disregarded as contradictory and meaningless, and that there was a breach of the condition on the failure of the defendant, Wasser [540] man, to pay the amount recovered in the action within thirty days after the final judgment. The instrument was'badly drawn, and no construction of it is possible under which every one of its provisions, taken separately, can be given full effect; but all of its parts should be considered together, and we should give it effect, according to the manifest intention of the parties, if we can ascertain their meaning. On its face it discloses a purpose on the part of a person provided for by the Pub. Sts. c. 161, § 128, to avail himself of his rights under that statute. It sets forth that the principal obligor’s property has been attached on a writ against third persons. The land is not described in the bond as it should be, but this omission does not invalidate the instrument, inasmuch as the case and the attachment are referred to and are a part of the original record, and the description of the property necessarily appears in the officer’s return. The bond states that “Frank Wasserman wishes to dissolve the said attachment according to law.” The only law to which he could have referred in the statement is the Pub. Sts. c. 161, § 128. Nearly all of the condition of the bond is made up of provisions required by this section. It is said that the reference to the requirements of the Pub. Sts. c. 171, in regard to special judgments, and to the St. 1888, c. 405, §§ 1 and 2, is inapplicable, because of the enactment of the United States bankruptcy act of 1898, c. 541. But this is not so; for when such a bond is given it cannot be known that the bankruptcy act will not be repealed before the final judgment, and in case of a repeal, these provisions might be important. The parties completed this bond and it was accepted and acted upon without first having an appraisal of the attached property under the Pub. Sts. c. 161, § 126. What effect should this have upon the construction to be put upon their contract ? The most natural construction, and that which in view of the first three lines of the condition would seem to carry out their meaning, is to say that by providing for the payment of the amount recovered in the final judgment “after said Berry shall establish his title to the land in a writ of entry,” etc., and by executing the bond without an appraisal of the land the obligors waived the requirement for an ascertainment of the value of the land, and [541] substituted the amount of the final judgment for the appraised value. See Commonwealth v. Costello, 120 Mass. 358. Perhaps the amount sued for was much less than the value of the land. We are of opinion that the subsequent provisions of the bond, taken in connection with the statutes, make it necessary to treat the words “ within thirty days ” in the fourth line of the condition, as contradictory and immaterial, and that the amount of the final judgment stands for the sum ascertained to be the value of the land, the parties having virtually agreed to go on without an appraisal, and that the bond is binding for the payment of this judgment on the establishment by the plaintiff of his title to the land attached, in accordance with the provisions of the Pub. Sts. c. 161, § 128. It is to be noticed that in each of the references to the special judgments under Pub. Sts. c. 171, and under the St. 1888, c*. 405, respectively, there is in the bond an express condition that the plaintiff shall first establish his title by a writ of entry. The construction contended for by the plaintiff virtually strikes out of the bond all after the fourth line of the condition, for if there is a requirement to pay the amount of the judgment absolutely within thirty days all the rest of the condition is meaningless. Because there is in the declaration no averment that the plaintiff has established his title by a writ of entry, the demurrer was rightly sustained. Judgment affirmed.